The Florida Anti-Mask Laws: Unveiling Florida’s Crime Fighting Legislation
Michael
Page
Designed to aid law
enforcement and to prevent criminals from avoiding detection, Florida’s anti-mask laws—comprised of § 775.0845
and § 876.11–.16—have proven to be effective in providing safety to citizens of
the Sunshine State from masked criminals.[1] However, parts of these laws have been
criticized of overstepping their bounds in their application, and have required
both judicial and legislative intervention to rein them in.[2] This intervention has indeed led to significant
advancements in this regard; although, in recent years, this progress has
become stagnant.[3] Even though the overreach of statutes §
876.12–.15—which form the primary body of the anti-mask laws—has been curtailed
to an acceptable level via supplementary statutes, the same cannot be said for
the auxiliary statute, § 775.0845.[4] Florida Statute § 775.0845 hardens punishment
for any criminal, who—during the commission of a crime—conceal his or her
identity.[5] For these criminals, wearing a mask amplifies
their sentencing beyond which would normally be given for a specific crime.[6] By its nature, this statute attaches itself
to any criminal activity, that is, except for the crimes of wearing masks
provided by the anti-mask laws’ main body of statutes.[7] While portions of this reclassification statute have been addressed, through its judicial
employment, it is clear that the statute suffers from an ambiguous application
that leaves un-expecting citizens vulnerable to its wrath.
The Florida anti-mask laws have been able to adapt
relatively well since their original inception in 1951 and is almost comparable
to MAMA.[8] The laws aided in squelching the Ku Klux Klan
in the South and provided citizens with much needed relief from the terroristic
tactics.[9] By the 1980s, these statutes continued to
serve in content-neutral purposes, namely aid in crime prevention.[10] This was implemented by de-incentivizing
criminals from using masks, hoods, and other devices by increasing the penalty
imposed during sentencing.[11] Due to unclear legislative language, the
application of the increased penalty caused some conflict in the courts.[12] The Supreme Court of Florida put the issue to
rest when it interpreted the this increase to be an enhancement.[13] However, the legislature disapproved of this
interpretation and amended the statute to be clearly labeled as a
reclassification statute.[14] While there was little practical difference
between the two penalty increases barring anything else, the statute frequently
interacts with the habitual offender statute.[15] The habitual offender statute, as an
enhancement, was unable to be applied to other enhancement statutes without
violating an offender’s due process rights.[16] Once the anti-mask statue was corrected to
read as an offense reclassification statute, the two were both able to be
applied to a single case with no violations.[17]
While the procedural issues of the
criminal anti-mask law were resolved, there are issues that still remain
regarding its substantive aspect. These
issues revolve around a disconnect between the language of the statute and the
court’s interpretation of it. While most
of the anti-mask statutes specify concealing the face, the reclassification
statute makes no such specification; the court then applied this statute to a
case involving a man committing a crime wearing a women’s clothing.[18] The court only glossed over this issue and
has not had a second opportunity to discuss its reasoning.[19] However, it seems that the court found a
person’s identity to be more than just his or her face, but the entirety of the
characteristics that make that person who he or she is.[20] Unfortunately, this does not offer much
insight as to how much consideration the court would give to crossdressers, who
also may be criminals.[21] The court only stated that the evidence of
the defendant regularly crossdressing did not preclude the use of this disguise to facilitate the defendant’s
criminal behavior.[22]
One substantive issue, on the other
hand, was adequately addressed by the Supreme Court of Florida in the early
1980s.[23] The anti-mask statutes were found to have a
broad sweep that too easily reached into innocent activities, despite the
exceptions given to the law.[24] To repair this fatal mistake, the Florida
legislature decriminalized the use of devices that concealed the wearer’s
identity, that is, unless there is an intent to commit some crime.[25] This is only a single circumstance of
reducing the vague application of the statutes, but more needs to be done. Unless the
legislature is proactive or a needed case in controversy appears, these laws
will remain unchanged. If the
legislature were to amend the statutes, other states can provide guidance into
better statutory language for Florida law.
Florida courts can also learn from other states since cases in
controversy discussing masks themselves are few and far in between. The court should examine cases in other
states to aid their understanding of Florida’s own statutes when a case appears
that is similar to a case from another state.
Whether or not the Florida laws are corrected, one such case the courts
should be mindful of is Commonwealth v.
Santos—where concealment of identity must be determined individually, based
on the full circumstances of each.[26] However, while helpful, it alone is not
adequate alone in removing ambiguity from the statutes.
The Model Anti-Mask Act may be the
answer the Florida legislature needs. It
effectively merges the seven statutes that comprise Florida’s anti-mask laws
into two sections.[27] MAMA § 100 essentially comprises §
876.11–.16.[28] It dictates in one statute was Florida’s
legislation does in six.[29] At the same time, it provides a narrower
application, requiring the intent to conceal one’s identity.[30] Furthermore, by offering examples of the ways
in which an individual conceals his or her identity, § 100 facially implies a
definition of identity that goes beyond facial recognition.[31] This version of identity acknowledges that a
person is more than just his or her face, while Florida’s anti-mask laws do not
do the same. Meanwhile, MAMA § 200
encompasses the § 775.0845 provision, but also provides a key addition.[32] § 200 demands an additional layer of intent
not in Florida’s statute.[33] Here, the concealment of identity must be for
the purpose of furthering the commission of a crime; thus, eliminating the
question of happenstance concealment of identity.[34] Nevertheless, Florida should not adopt a
mirror replica of this section. In its
current state, § 200, labeled as an enhancement, would conflict with the repeat
offender statute and must be re-categorized as a reclassification.[35] Close attention needs to be given by Florida
lawmakers if this statute is to adapt into the next seventy years as it has for
the nearly seventy years before.
[1]. S. Poverty Law Ctr., Ku Klux Klan: A History of Racism and Violence 22–23 (Richard Baudouin ed., 6th ed. 2011); Zachary J. Wolf, Hate Crimes L § 12:1,
Westlaw (2017 ed. 2017); see also Fla. Stat. §§ 775.0845, 876.11–.16
(2017).
[2]. See Fla.
Stat. §§ 775.0845, 876.155; Sumpter v. State, 838 So. 2d 624, 625 (Fla.
2003); Cabal v. State, 678 So. 2d 315, 317 (Fla. 1996); Robinson v. State, 393
So. 2d 1076, 1077 (Fla. 1980).
[3]. See Fla.
Stat. §§ 775.0845, 876.155; Sumpter v. State, 838 So. 2d 624, 625 (Fla.
2003); Cabal v. State, 678 So. 2d 315, 317 (Fla. 1996); Robinson v. State, 393
So. 2d 1076, 1077 (Fla. 1980).
[4]. Fla. Stat. §775.0845.
[5]. Id.
[6]. Id.
[7]. Id.
[8]. See Fla.
Stat. §§ 775.0845, 876.11–.16 (2017); Simoni, supra note 153, at 268–70.
[9]. S. Poverty Law Ctr., supra note 1, at 22–23.
[10]. Wolf, supra note 1, at § 12:1.
[11]. Fla. Stat. § 775.0845.
[12]. See Archibald v. State, 646 So. 2d 298
(Fla. 5th DCA 1994); Spicer v. State, 615 So. 2d 725, 726 (Fla. 2d DCA 1993), superseded by statute, Fla. Stat. §
775.0845 (1995); Jennings v. State, 498 So. 2d 1373, 1374 (Fla. 1st DCA 1986), overruled by Cabal v. State, 678 So. 2d
315 (Fla. 1996).
[13]. Cabal
v. State, 678 So. 2d 315, 318 (Fla. 1996), superseded
by statute, Fla. Stat. § 775.0845 (1997).
[14]. Fla. Stat. § 775.0845 (1997).
[15]. 16 William H. Burgess, Fla. Prac. Sentencing § 6:47, Westlaw
(2016-2017 ed. 2016).
[16]. Id.; Fla.
Stat. § 775.084 (2017).
[17]. Sumpter
v. State, 838 So. 2d 624 (Fla. 2003).
[18]. Fla. Stat. §§ 775.0845, 876.11–.16
(2017); Fletcher v. State, 472 So. 2d 537, 538–40 (Fla. 5th DCA 1985).
[19]. See Fletcher, 472 So. 2d 538–40.
[20]. See id.
[21]. See id.
[22]. See id. at 539.
[23]. Robinson
v. State, 393 So. 2d 1076, 1077 (1980).
[24]. Id.; see
also Fla. Stat. § 876.16
(2017).
[25]. Fla. Stat. § 876.155 (2017).
[26]. Commonwealth
v. Santos, 672 N.E.2d 562, 565 (Mass. App. Ct. 1996).
[27]. Stephen J. Simoni, Note, “Who Goes There?”—Proposing a Model
Anti-Mask Act, 61 Fordham L.R.
241, 268–70 (1992).
[28]. See id.; Fla.
Stat. § 876.11–.16 (2017).
[29]. Simoni,
supra note, 27, at 268–70; Fla. Stat. § 876.11–.16.
[30]. Simoni,
supra note, 27, at 268.
[31]. Id.
[32]. Id. at 269–70; Fla. Stat. § 775.0845 (2017).
[33]. Simoni,
supra note 27, at 269–70; Fla. Stat. § 775.0845 (2017).
[34]. Simoni,
supra note 27, at 269–70.
[35]. Id.; Fla.
Stat. § 775.084 (2017).
